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Full text of "Tenure of church property"



TENURE 



CHURCH * PROPERTY, 



TZEOSTTT^IB OIF 1 



HURGMfpROPERTY 



:by tzh^e 



REY. DENSMORE D, CHAPIN, R. M 



<S"-&. r ^-^ 



MIKM I 

tOHKSON, SMITH \ HAUKISON. 



PREFATORY NOTE. 

The substance of these papers appeared in the Church- 
man in May of the current year. Many words of appro- 
val have reached the writer from all parts of the land, 
for which he is most grateful, and the wish has been 
expressed that they be republished in more permanent 
form. In compliance with this wish this edition has 
been issued. To many legal gentlemen, especially, would 
the writer return his thanks for their appreciation of his 
labor, and to one of their number, a stranger, is he 
indebted, in part, for the means to meet the necessary 
expense of republication. The papers have been care- 
fully revised, and some new matter added, especially 
reports in regard to incorporations in Florida, Georgia, 
Alabama, Mississippi, Kentucky, Kansas, Colorado, and 
New Mexico. Some account of action already taken in 
twenty-eight or thirty dioceses will be found. Surprise 
has been expressed that so much has been done, and the 
drift going on in the Church is clearly indicated. 

That there is urgent need of reformation in our meth- 
ods of holding property is but too evident. The testi- 
mony is the same from every source. A presbyter in an 
Eastern diocese writes : u I have made quite diligent 
inquiries to learn the status of things in , and 



as a result am able to say that it is ; every which way. 1 
No two parishes stand alike; few of our churches are 
exempt from alienation at the hands of an irresponsible 
and conscienceless vestry. 1 ' A prominent layman, a 
lawyer, in another diocese says: " I hope you may be 
able to arouse the attention of the Church at large to the 
subject. Confusion everywhere seems to prevail. Par- 
ochial organizations are found in our diocese that have 
no record of their beginning, and no certainty exists of 
their being a corporate body at all, under any general or 
special law of the State. In the case of our diocesan 
property, we have had trustees authorized by canon to 
hold such property, but no charter under the laws of the 
State for such organization could be found, though search 
has been made back to 1823." 

The writer here again expresses the hope that some 
legal gentleman, a Churchman, may take the matter up, 
and discuss the legal questions herein raised. 

D. D. C. 
Stillwater, Minnesota, September, 1880. 



TENURE OF CHURCH PROPERTY. 

The insecurity of Church property in this country 
under the present mode of tenure has attracted much 
attention of late, and there is a casting about on the 
part of Church authorities and councils for a remedy. 

The outcome, however, as yet, has not been great; in 
fact, the elements of the problem do not seem to be fully 
understood. What little knowledge exists upon the sub- 
ject is hidden away in law books and decisions of courts, 
inaccessible to the ordinary reader, unknown apparently 
to lawyers themselves, unless their attention has been 
especially called to the subject. 

It is greatly to be desired that some one skilled in 
canon and statute law, a Churchman, with interest in 
the subject, and with ample facilities for the study, should 
give the Church a monograph upon it, setting forth the 
methods by which property for sacred purposes has been 
held in different times and countries, with special refer- 
ence and bearing to the problems before us at the pres- 
ent time. Such a labor could be accomplished only by 
a trained legal mind, and would bring little remunera- 
tion, but he who should conscientiously and successfully 
perform it would place the whole Church under lasting- 
obligation to him. 



6 

The object of these papers is to call attention to the 
subject. Our current Church literature is almost en- 
tirely barren in regard to it. The " Manuals " of Hoff- 
man, Hawks, Vinton, and others, are confined mainly 
to ecclesiastical law, and but incidentally allude to the 
statute laws relative to matters pertaining to religious 
affairs.* A few newspaper paragraphs, a magazine article 
or two have been given us, and these have gone chiefly 
to show the dangers which beset property under the 
vestry system which has obtained in the American 
Church.f Beyond these, and the discussions which have 
grown out of the case of Christ church, Chicago, and 
litigations in one or two other cases, the writer hereof 
remembers to have met little upon the subject in the 
current literature of our Church. 

Others, however, besides Churchmen are at work upon 
the same problem, and the Hon. E. L. Fancher, LL.D., 
of New York, in 1876, delivered a lecture before the 
Methodist conference in that city upon the u Law ot 
Religious Corporations of New York/ 7 which is of great 
value, and to which reference will be made. The sub- 

*It lias "properly been objected to these writers, with the excep - 
tion of Dr. Hawks, perhaps, that they are ''too English," i. e. they 
have made too much of English law and custom, which have really 
little force here, and too little of the statute laws, by which, in fact, 
our church corporations are governed . The same objection holds 
against Mr. Baum's book. 

tThese dangers have been especially well set forth in an able 
article in The Church Review for January, 1879, by the Rev. G. 
Woolsey Hodge, of Philadelphia, and which deserves greater atten- 
tion than it has received. 



stance of the lecture is published m a volume of " Laws 
Relating to Religious Corporations," by the Rev. San- 
ford Hunt, D.D., of the Methodist Church, New York, 
1878, which volume contains the laws of the different 
States upon the subject, and is the best manual of the 
kind extant. 

The writer hereof has given some attention to the 
subject, but amid other and engrossing cares, away from 
books, his means of study have consequently been limited; 
but he has arrived at some conclusions,* and gathered a 
few facts which he ventures to present, as has been said, 
chiefly with the hope of stimulating others to labor in an 
almost unexplored field. He would only be too glad if 
some of his conclusions can be shown to be wrong. 

The method of holding Church property in the United 
States seems to be, to a great extent, a novel one, the 
outgrowth of our peculiar institutions and the necessi- 
ties arising from the separation of Church and State. 
This method consists in the creation of religious corpo- 
rations, which differ little from civil corporations for 
secular purposes, except in their end; yet there have 
come to us through colonial custom and usage some of 
the traditions of English common and ecclesiastical law- 
These traditions, however, as against the written stat- 
utes of the different States, are of little avail so far as 
the disposition and control of property are concerned* 
The English theory of abeyance, in which, by one of 
those peculiar fictions common to English law, the title 
to Church property there is said to be placed, is unknown 



here.* Neither do we know anything of that other 
fiction of the Civil Law recognized oyer the greater part 
of Europe from the time of Justinian to the present day, 
that Church property is "nobody's property, 1 ' a theory 
remotely akin to the u corban" of the Hebrews. The 
B,oman law recognized three kinds of property: public 
property, i. e. belonging to the State; private property, 
and nobody's property (res nullius), and Church property 
was placed under the last head. 

But in America, as has been said, the Church, or the 
churches, exist simply as any other corporation, and 
have no analogy to what are known in England as "ec- 
clesiastical corporations." The State has no "establish- 
ment," and knows, theoretically, no preference for one 
denomination over another; all stand on the same foot- 
ing before the law. In practice, however, the Puritan 
idea has prevailed — that is, that any number, a half 
dozen, more or less, of persons could combine themselves 
together and organize a "church." The law seems to 
have lent itself to this idea, and made this organization 
a body corporate, capable of holding property for eccle- 
siastical uses; being, in fact, a church to all intents and 
purposes. Around this idea as a nucleus the whole 
scheme of legislation, so far as it has been a scheme, or 
has been based upon an idea, has been crystallized ; and 
to-day the laws of all the States are shaped upon the 
same or nearly the same model, and for the most part 

*The actual title is not in_[the "incumbent," nor the "patron" 
but in abeyance. 



9 

the ecclesiastical regulations of the different religious 
bodies, including the Protestant Episcopal Church, rec- 
ognize and are based upon the same idea. The Roman 
Catholic Church forms a noted exception, yet even this 
has been obliged to conform in a measure to it;* also 
there are some exceptions coming down to us from colo- 
nial times; such as the Old South Church and King's 
Chapel, Boston, and some others, which seem to have 
been framed upon the joint-stock proprietary principle, 
owned in absolute fee by the pew-holders as proprietors 
of the same. 

It is nee* ssary to understand this, for out of it has 
come the prevailing customs of the country; all legisla- 
tion has been based upon it, and the decisions of the 
courts have recognized it; from the same source most of 
the troubles have come which now on every hand are 
causing so much anxiety and alarm. 

The Episcopal Church, in spite of theories, began in 
this country in a congregational way. It had no bishops 
in fact, no dioceses, no organization except the congre- 
gational one, and when, after the revolution, dioceses 
were organized, they were simply confederations of ex- 
isting parishes uniting, in a somewhat loose way, for 
certain specified and limited purposes; the parishes re- 

*The property of the Roman Church, for the most part, in accor- 
dance with a decree of the Council of Baltimore, is held by the 
Bishops in their own name. The danger of this system has recently 
been shown in the case of Abp. Purceli. By special enactments in 
some States, corporations composed of the bishop, vicar-general, 
the pastor and two laymen, hold parochial property. 



10 

maining the practical church units, holding the church 
property, being the only corporate bodies known to the 
law; and all the power and authority the dioceses pos- 
sess flows from parishes as the organic source of life.* 
And to this day the dioceses as such, for the most part, 
have no corporate and legal existence which the legisla- 
te es of the States and the courts know and recognize. 
It follows from this that the Episcopal Church is in 
exactly the same category, or has been, until some recent 
attempts at legislation have somewhat changed the 
status, upon the same level, and before the law in the 
same plane as the Congregational and other religious 
bodies of professedly congregational polity in the land. 
The parish is the church. It owns and controls its pro- 
perty; may sell or alienate the same, subject only to its 
organic law, i. e. to the statute law, to which it owes its 
organic life, and the articles of incorporation which form 
its charter as a body corporate. In substantiation of 
this idea, Judge Hoffman says: u The statutes which 
create an incorporation, either particularly of a vestry 
in cases of Episcopal churches, or trustees generally, 
give the usual powers to take and hold real estate, to 
manage ail the property and temporalities of the body, 
to have succession and the other powers attendant upon 



*Such in fact has been our working- system, and such the theory 
of our organization and polity, as expounded by Dr. Vinton, as will 
be seen by reference to his "Manual, 1 ' p. 94. The idea that the 
Diocese is the normal and organic unit seems to have been for- 
gotten or ignored. 



11 

the formation of a corporation aggregate" (Law of the 
Church, p. 252).* 

Upon this matter I shall take the liberty of making 
some quotations from the lecture of Judge Fancher, 
above mentioned. 

He saj-s: " The law does not take cognizance of any 
Church in respect of its doctrinal peculiarity, nor does 
denominational character affect its civil rights. The 
courts, however, may inquire into those matters where 
questions concerning property call for it" (p. iii.). 

Again, speaking of the law of 1813,f which, although 
often amended, still remains substantially the same, he 
says: '* Although it declares that the trustees shall be a 
body corporate, a view of the entire act, and the current 
authority as well as the popular opinion, sustains the 
position that the congregation or society, and not the 
trustees, are incorporated. The relation which the 
trustees bear to the corporation is not that of private 
trustees to the cestuis que trust, bat that of directors to 
a civil corporation. They are the managing directors 
of the corporation, invested, as to its temporal affairs, 

*See also the same author in Ec. Law of New York. He says, 
speaking- of the duties of the Rector, " Whenever the provisions of 
such statutes, expressly or by necessary implication, govern his 
relations with a vestry or congregation, or otherwise, they form the 
absolute law for him.' 1 p. 78. 

fThe first section of this act was framed with special reierence to 
the formation of parishes in the Episcopal Church. It was repealed 
in 1868, and a special law passed in its place. So far as the tenure 
of property is concerned, its provisions in no way differed from the 
other sections of the act. 



12 

with such particular powers as are specified in the stat- 
ute, and, also, within the sphere of their appropriate 
duties, with such discretionary powers as may properly 
be exercised by officers of a civil corporation. Therefore 
whatever property is acquired is vested in the corpo- 
ration aggregate, and not in the trustees"* (p. iv.). 

So far did this power go that, in the opinion of the 
learned judge, u as to the temporal concerns of such a 
corporation, ... if a band of infidels should have be- 
come members of a religious congregation, and, as elect- 
ors for trustees, should have elected some of their num- 
ber to the board, the courts could not, prior to the late 

act of 1875, interfere The courts hitherto, before 

the law of 1875, had held that religious corporations, 
formed under the third section of the act of 1813, had 
no denominational character, and that none could be 
engrafted on them. Ecclesiastical connection, doctrines* 
rites, or modes of government of the spiritual body did 
not affect the legal character of the corporation. The 
title of the trustees to office, and the control of the pro- 
perty, prior to the late act of March 29th, 1875, was not 
impaired by any aberration in doctrine or Church gov- 
ernment on the part of the congregation which elected 
the trustees" (p. vi.). 

These are very sweeping and very startling proposi- 
tions, and, if true, it is for Church lawyers to determine 
how far they may apply to parishes of the Episcopal 

*This is a very important distinction, and should be carefully 
noted. 



13 



Church in New York, organized prior to 1875. Also it 
is for them to inquire how far, if at all, the statute of 
1875 can be made applicable to parishes organized prior 
to that date. 

This New York statute of 1813 is a very important 
one in the legislation of this country in regard to reli- 
gious corporations, for it is the model which has been 
closely followed in most of the States, and consequently 
the greater part of our legislation is based upon it. 



IT. 

The parish, as that organization now exists in this 
country, has a twofold aspect. The first, that of a civil 
corporation created for a religious purpose, is the pri- 
mary and chief one. This gives to it its stamp and 
character. The statute law under which it has been 
formed, and its " articles of incorporation" (whatever 
they may be called), constitute its organic law. These 
are the fountain from which it flows, and the rule by 
which it must be governed. All its internal polity must 
be in conformity with these. All parish meetings and 
vestry proceedings should be in accordance with these, 
and all property acquired must be held and managed in 
the same way The courts will hold, if called upon, to 

*I doubt if one rector in ten in the country has any knowl- 
edge of the organic law of his parish, or the requirements of the 
statute in regard to his duties toward the corporation, or his rights 
under the same. 



14 

a strict and literaJ enforcement in these respects, and 
will allow no interference from other and outside sour- 
ces. If any character of trust has been stamped upon 
the original organization which does not contravene the 
statute, or upon any species of property held by the par- 
ish, this trust will be protected and enforced. 

These, broadly speaking, are the general conditions of 
our parish existence as civil corporations. They are 
common to the parishes of the Episcopal Church and 
the societies of the religious denominations generally. 

The other aspect is a purely ecclesiastical one, and 
pertains to the relations of the parish to the diocese and 
the Church at large. Although from a churchly stand- 
point, this relation may be the primary one, from the 
secular and legal side it is purely accidental and second- 
ary — wholly a voluntary arrangement, and the civil 
courts will so regard it. In fact, many parishes exist, 
such as the Holy Communion and Holy Trinity, Xew 
York city, which have never entered into this arrange- 
ment at all. 

The only question which can arise is, when a parish 
"is admitted into union 11 (the language is significant) 
with a diocese, does it subordinate itself in any way, as 
to its secular concerns, of necessity, to the rule and con- 
trol of the diocese ? In other words, does it merge itself 
into the larger organization in such a way as to be sub- 
ject to any law in these respects other than it has formed, 
or has been formed by the statute law for itself ? 



15 

If our above propositions are correct, it certainly does 
not so merge itself. The diocese may prescribe rules 
and methods of procedure as conditions precedent to 
"union with" itself, and, if these conditions are not com- 
plied with, may exclude the parish from diocesan privi- 
leges, but here its jurisdiction ends, unless this condition 
is made a part of its organic law as a civil corporation; 
but this condition does not exist, I apprehend, in many 
parishes not recently organized. 

In fact, this was the very question at issue in the 
famous case of Christ church, Chicago — a res adjadi- 
cata — and is the law absolute in three of our dioceses, 
and the law presumptive in the rest, until that decision 
shall be reversed; and, considering what the whole course 
of legislation has been, and the general decisions of the 
courts — in fact, the whole "stream of tendency 1 ' until 
the decision of that famous case — there seems little pros- 
pect that the decision will or can be reversed in regard 
to parishes formed before that time, unless in excep- 
tional cases, where some character of trust had been 
expressed or implied.* 

I quote from the "case" and decision to show the 
strength of this position: 

u Bill avers: That said parish of Christ church, from 
the time of its organization and admission into union 
with said convention, has been and still is a part and 

*There is probably no reason why Trinity parish, New York, 
could not alienate its property from the Church, if it wished, ex- 
cept the character of trust originally stamped upon it. 



16 

parcel of the Protestant Episcopal Church in the Dio- 
cese of Illinois, and subject to the laws, regulations, 
discipline, and authorities of said Church, and tnat 
the said church in said diocese is, and all said time has 
been, part and parcel of the said Protestant Episcopal 
Church in the United States of America, and subject to 
the constitution, canons, and other laws thereof; that 
said church, in said diocese, long prior to the organiza- 
tion of said parish, acceded to the constitution and can- 
ons of the said Protestant Episcopal Church in the 
United States of America, and recognized the authority 
of the General Convention thereof. 

" Answer admits : That the parish of Christ church, 
since its admission into union with the convention of 
the Protestant Episcopal Church in the Diocese of Illi- 
nois, has been, and will continue so to be, until the con- 
nection is severed by the action of that ecclesiastical 
organization, part and parcel of the Protestant Episcopal 
Church of said diocese and of the United States, and as 
such subject to the laws and regulations thereof as an 
ecclesiastical body, or to the loss of privileges pertaining 
to it as such; but the defendants deny that so far as 
temporal rights and secular affairs of said parish are 
concerned, including therein the employment and pay- 
ment of such person to conduct religious services for 
said parish as may be by it selected, the same are subject 
to the control of the laws, regulations, and authorities, 
constitutions and canons, of the Protestant Episcopal 



17 

Church of the Diocese of Illinois and of the United 
States, but insist that as to such rights and affairs, the 
parish of Christ church is duly incorporated under the 
laws of the State of Illinois in relation to religious cor- 
porations, and in that regard is purely a civil corpora- 
tion, and controlled by the laws of the State alone from 
which comes its charter of incorporation, and that these 
defendants are the representatives of said civil corpora- 
tion, to whom it committed the custody of its property 
and management of its temporal concerns, which, by 
the law of the land, are in no wise brought into subjec- 
tion to any ecclesiastical judicature or governing body 
whatever. That as to the oincers of the civil corpora- 
tion known as Christ church, they are, under the laws 
of the State of Illinois, vested with the customary pow- 
ers* of officers in like cases, and subject, in the disposition 
and management of the property and revenues of said 
corporation, to the will of the members of said corpora- 
tion, expressed according to law/ 1 (Calkins vs. Cheney — 
Abstract, p. #, et seq.). 

More could be quoted from the "case" to the same 
effect, but it is not necessary. 

The decision by Judge Schofield is too long to quote, 
but a few abstracts show its tenor, and fully sustain the 
defendants in the answer quoted above. 

He says: " If under the facts stated the parish or con- 
gregation has the right to declare what religious use the 
property shall be applied to, without regard to the de- 



18 



cision of ecclesiastical judicatories, it is clear the injunc- 
tion should not be awarded, and this is the only inquiry 
to which we shall direct our attention/' 

Again: "From these references to the statute it is 
clear that the trustees of an incorporated religious soci- 
ety or association do not hold the property in absence 
of declared or clearly implied trust for any church in 
general, nor for the benefit of any doctrines or tenets of 
faith and practice in religious matters, but solely for 
the society or congregation whose officers they are, and 
that they are not, in the discharge of their duties, sub- 
ject to the control of any ecclesiastical judicatory. The 
property belongs to the society or congregation so long 
as the corporation exists, and when it ceases to exist, 
belongs to the donors or the heirs." 

Again: " Such incorporated societies are not, there- 
fore, to be classified with ecclesiastical persons, and sub 
ject to ecclesiastical judicatories, but rather with civil 
corporations, to be controlled and managed under the 
general principles of law applicable to such corporations 
as administered by the civil courts/' 

And much more to the same effect. 

Stripped of all extraneous matter, this was the point 
at issue, and it is not easy to see how the outcome could 
have been other than it was.* We may not like it, may 

*The Rev. Mr. Bauni's book on "The Rights and Duties of Ree- 
tors, Church- wardens and Vestrymen" has come into my hands 
since the above was written. I find that in commenting upon 
Canon 24, Title I. of the canons of General Convention, he takes 



19 



believe it all wrong — from the Church standpoint it 
certainly is — may believe it a case of clear robbery under 
the form of law — I so believe it — but what are we going 
to do about it ? Who but the Church herself is to blame 
for going on for a century, almost, organizing and incor- 
porating an almost unmixed Congregationalism ! The 
Church itself, or the Churches, which are the dioceses, 
with few exceptions, and these of recent date, have no 
standing place, no existence, in fact, as corporate bodies^ 
as property holders, or capable of holding property, or 
appearing in the courts, in ail the broad land to-day — 
that place has been vacated to local and irresponsible 

substantially the same view as has been taken above. As to Sec. 2 
of that canon, he says: " It is only binding upon the consciences of 
Churchmen; it does not legally bind a vestry or congregation. If 
by charter or the statute law of the State the vestry has power to 
alienate, no canon of the general or diocesan convention can de- 
prive them of such a right. But it shows the mind of the Church, 
and all Churchmen who are true to the Church will be governed 
by it The whole of this canon should be incorporated in the stat- 
ute law of the State governing the parochial incorporation thereof, 
which would guard new parishes in the future. But the parishes 
already incorporated it would not affect until their charters were 
amended so as to conform to it. A charter is special legislation, 
and is not affected by the general law of the State, unless granted 
under a statute subjecting it to amendment by future State legisla- 
tion" (p. 298). It has always been a source of wonder that the 
General Convention, containing so many able lawyers, should ever 
have passed such a canon. As well might they have enacted by 
solemn canon law that the Mississippi river should run north! 
However, it is but fair to say that the incongruity of such legisla- 
tion was apparent, for che proviso is attached that "This section 
shall not be operative in any State with the laws of which, rela- 
ting to the title and holding of property by religious corporations, 
the same may conflict." 



20 

bodies owing little allegiance to the Church — their exist- 
ence ending in themselves ! 

If these positions are not true, none will be more glad 
than the writer to see them disproved; but if true, it is 
best to know it, to confess it; no "ostrich-policy" of 
hiding the facts will be of avail. These are of the very 
elements of the problem which all the Church is trying 
to solve. 

In May, 1875, the legislature of New York passed the 
following act as amendatory of the general law of 1813: 

u Sec. 4. The trustees of any church, congregation, or 
religious society, incorporated under said section three 
of the above-mentioned act [1813], shall administer the 
temporalities thereof, and hold and apply the estate and 
property belonging thereto, and the revenues of the 
same, for the benefit of said corporation, according to 
the discipline, rules and usages of the denomination to 
which the church members of the corporation belong; 
and it shall not be lawful for the trustees to divert such 
estate, property, or revenues to any other purpose, except 
toward the support and maintenance of any religious, 
benevolent, or other institution connected with such 
church, congregation, or religious society." 

This act marks an era in our legislation, a turning- 
point in another direction. It is probably the first effort 
to fix, in a general way, conditions of trust, of a denomi- 
national kind, upon trustees holding property for reli- 
gious purposes. Judge Fancher says in regard to it: 



21 

"Prior to this act it had several times been held by the 
courts that the congregation and trustees could change 
their faith and denomination, and totally disregard the 
ecclesiastical relations and ordinances of the denomina- 
tion to which before they were attached." 

It will be seen, however, by the words I have italicized 
in the act, "church members," that somewhat of the old 
leaven still remained, virtually neutralizing the whole 
intention of the law. And so we find that at a subse- 
quent date (April 6th, 1876) the act was amended so as 
to read, beginning, "The rector, wardens, and vestrymen, 
or the trustees, consistory, or session of any church," 
etc.; and further on, "according to the rules and usages 
of the church or denomination. 17 the words "church 
members" being stricken out. 

Thus broadened out, the act is made to cover the con- 
ditions of the Episcopal Church. 

The special legislation in regard to the Episcopal 
Church up to this time, so far as I can see, in respect to 
the subject matter of our inquiry, in no respect differs 
from the general law. 

This legislation of New York has been followed in 
effect by other States. 

The other question which we asked, viz., Whether 
legislation like that of New York of 1875, above quoted^ 
is or can be retroactive? that is, whether it can apply to 
parishes organized prior to that date, I shall content 
myself with asking, hoping others will try to answer it. 



22 

It leads into deep legal water, where a "layman, 11 so far 
as the law is concerned, can scarcely vent ure. The law 
quoted, however, seems to imply that it does have such 
application, and Judge Fancher, in commenting upon it, 
seems to hold the same view. But other legal minds 
think different!}', and do not hesitate to assert that, as 
to corporations created prior to the passage of the act, 
it is absolutely null and void — is virtually an ex post 
facto law; that these corporations are governed solely by 
their own organic law. Although the statutes they 
were created under have been repealed, and are no longer 
on the statute books, still the corporations look to them 
alone as their governing power. The decision of the 
Supreme Court of the United States in the famous Dart- 
mouth College case favors this view. In this case the 
court held that the charter of a corporation is of the na- 
ture of a contract between the State and the corporation, 
and cannot be annulled or changed without the consent 
of both contracting parties; therefore it is not in the 
power of a legislature to take away or alter a granted 
charter of its own motion only. The application of this 
doctrine to our question is evident. 

But if, as seems to have been held in more recent 
decisions by the same tribunal in the " Granger cases," 
legislatures have power to modify and change the charters 
of the bodies of their own creation, then these acts apply 
to all parishes alike, whenever organized. Whether 
these decisions are at variance is the business of the 
courts themselves to determine. 



23 

It is probable, however, that lawyers will differ in 
opinion in this respect, and that this question, like the 
other, must ultimately be decided by the courts. Mean- 
time, the matter is worthy of the most thoughtful legal 
ability in the Church.* 



III. 

It should be remembered that these papers are not 
dealing with ecclesiastical theories, bat with historical 
and somewhat hard and secular facts; with matters as 
they appear in civil courts rather than Church councils. 
I am aiming- to describe things as they ar3 rather than 
as they should be. 

The number of parishes in the United States is about 
3,000, scattered over more than forty States and Terri- 
tories, and, as civil corporations, chartered according tp 
the various and varying laws of those States and Terri- 
tories, and, of course, governed by the same. 

* Wm. Henry Arnaux, Esq., writes to the Churchman, of July 10. 
giving the history of the Dartmouth College case, and explaining, 
or endeavoring to explain, the difference between this and the 
" Granger 1 ' cases. I am told, however, by competent legal author- 
ity, that in the West, where the latter cases arose, there has not 
been general satisfaction among- the legal profession as to the 
soundness of the distinctions made. These cases went up to the 
Supreme Court from Wisconsin, Iowa and Minnesota. The Con- 
stitution of Wisconsin contains a provision forbidding the granting 
of perpetual charters, but Iowa and Minnesota have no such pro- 
visions. I greatly regret that Mr. Arnaux did not undertake to 
explain the effect of the laws of 1875-6 upon corporations created 
prior to that time. 



24 

Of the number and extent of these variations no man can 
tell, and of their powers, duties and obligations the par- 
ishes themselves have little knowledge. Their "Articles 
of Incorporation" have, for the most part, been drawn 
by local lawyers,* having little knowledge of ecclesiastical 
matters, and these various laws are interpreted by mul- 
titudes of local courts. 

Minnesota is one of the newest States, yet an examin- 
ation of its statute books reveals the following facts: 
On the formation of the Territory in 1850 the laws of 
Wisconsin were in force. The law of Wisconsin in 
r egard to the formation of religious societies was a copyi 
for the most part, of the New York Jaw of 1813. 

In 1851 the same law, with some minor amendments, 
was adopted by the Territorial legislature. 

This was amended by the general Territorial act of 
1853. 

In 1856 the ''Van Ingen law" was passed; this was, 
in general, a copy of the New York law, and was the 
first legislation in Minnesota in regard to the Episcopal 
Church especially. 

*I have obtained copies of the "Articles of Incorporation" of a 
number of parishes, and tog-ether they form a curiosity. It is 
simply amazing* to note the carelessness, not to say ignorance, with 
which they have been drawn up. In most ot the Dioceses no effort 
seems to have been made to provide a suitable legal form lor these 
most important documents, on the wording of which so much 
depends. Under such circumstances it is hardly necessary to say 
that any decision of the courts in regard to one parish can be no 
precedent for another, as scarcely any two exist on the same con- 
ditions. 



25 

By special acts of the Territorial legislature some of 
the older parishes, as Grethsernane, Minneapolis, were 
incorporated — how many I do not know. These, of 
course, are subject to their own special act, and in no 
way under general laws. 

In 1857 the Territory became a State, and in 1858 the 
law of 1853, with some amendments, was re-enacted by 
the State legislature. 

At the same time, and by the same body, the " Van 
Ingen law," also with some amendments, was re-enacted 

In 1866 the general law was again amended, some 
changes being made. 

In 1876 the' " Van Ingen law" was again amended. 
Under this law, with its variations, the greater part of 
the parishes of the diocese, probably, have been incor- 
porated. 

In 1877 was passed the ■" Wilder law." Its phrase- 
ology is peculiar, but its aim seems to be to accomplish 
the same as is supposed to be accomplished by the New 
York laws of 1875-1876, viz., to impose some conditions 
of trust upon the parishes other than for the congrega- 
tion itself. Whether it intends to impose this trust 
upon the parishes organized prior to 1877, I am unable 
to make out. 

Here, then, we have, in thirty years, at least eight dif- 
ferent laws, under any of which parishes might have 
been organized, and of special acts, how many I do not 
know. Of course, each parish, for its government, goes 



26 

back to its organic law. Meantime, it is probable that 
most of these parishes, in such matters as the election of 
wardens and vestry, and other matters, have thought 
they should be governed by the canons ot the diocese. 
"As civil corporations, as we have seen, neither the dio- 
cese nor General Convention has in these respects any 
control, unless such control is provided for in the charter 
of the parish, or in the law under which it is incorpo- 
rated.* 

If such is the case in one of the newest States, we 
may infer what it must be in the older States, where 
parishes have been forming during a hundred years and 
more. As a broad conjecture it is safe to say that these 
3,000 parishes are governed by 500 various laws, or exist 
under so many different conditions, which may affect 
their polity, and tend to influence the character of the 
tenure of the property they may hold. 

In view of this state of things, we have long consid- 
ered the " Cheney case" a most providential thing for 
the Church at large — a blessing in disguise. It showed 
us where we stand; brought to the surface a condition 
of things little dreamed of before; revealed the insecurity 
of the foundations under us; called the attention of 
thinking and earnest men to the subject in a way no- 
thing else could have done. It is an evidence of how, 

*At the late Council of the diocese the Committee on Church 
Property was instructed to obtain, as far as practicable, copies of 
the " Articles of Association v of the parishes in the clioeese, and 
present an analysis of the same to the next Council. Similar action 
has been taken in several dioceses. 



27 

in many ways, in the end, the Lord "makes the wrath 
of man to praise Him.' 1 

The first step toward finding the remedy for any dis- 
ease is a careful and accurate diagnosis of the same. 
Such a diagnosis, in part at least, I have attempted to 
give. It may be wrong — I sincerely hope it is. To this 
end it is useless to hide or ignore the facts; we should 
know the worst. It was determined by skillful engi- 
neers that the foundations of the Washington Monu- 
ment were insecure ; to hide such a fact, and keep on 
rearing the structure would have been criminal in the 
extreme. The same is true in the Church, as to the 
subject matter of our inquirj 7 — "the foundations are out 
of course/' We have been "building upon the sand/' 

By the providence of God only, thus far, great loss 
has not been incurred; but there may happen to us at 
any time such a defection as befell the Congregational- 
ists of Massachusetts halt a century ago.* 

The difficulties of making any change, in any direction, 
are very many and very great. In the first place there 
are the prestige and custom of a hundred years. The 
present method has become a part of the law of the land. 
Everywhere are vested interests, in the aggregate amoun- 

*The history of the lapse of the Congregational societies of New 
England into Unitarianism, and the taking of church property 
which had been given for "orthodox" purposes, is most instructive; 
the litigation growing out of it is much to our point, and confirms 
the position taken in these papers. The decisions everywhere were, 
in effect, that each society was a law unto itself, and could do as 
it pleased with the property it possessed. 



28 

ing to vast sums. There would be great jealousy and 
fear on the part of vestries of relaxing in any way, on 
the motion of others, the hold upon property they now 
have. It would appear to them that in some way they 
were to be robbed of their rights and inheritance, or 
what they have come to consider as such. There also 
might arise legal difficulties of a numberless kind — 
many of these corporations being charged with various 
trusts, making it difficult or impossible for them to 
make any change which might endanger the trusts com- 
mitted to their charge. Our legislatures, also, are very 
hostile to any legislation tending to concentrate Church 
property in large amounts in corporate and individual 
hands, and reasonably and justly so, with the rapacity 
and greed of the Roman Church before them on every 
hand. The dread is not to be wondered at when it is 
remembered that, at the beginning of the reformation in 
England, the Church, under Roman dominion, owned 
or controlled one-third of the real property of the realm. 

In fact, the difficulties are so many and so great that 
by some it is asserted that at this day it is impossible to 
make any radical or effective change. It is insisted upon 
that we must go on as we now are. 

Still, the necessities of the case are admitted to be 
great, and it is confidently hoped that some remedy may 
yet be found. 

The remedies which have been suggested, and the ap- 
plication of which in some dioceses undertaken, are 
various. They look in general to the establishment of 



29 

some central, more permanent and more responsible 
body, which shall be a more safe place of deposit for the 
title of Church property than the vestries now afford. 
Of the necessity of such a place of safety all are agreed, 
but just what that place or body shall be, its character 
how constituted, there are many and varying opinions. 
It lies somewhere, and is somewhat, between the loose, 
changeable, and irresponsible vestry and the centralized, 
personal, and equally or more irresponsible method of 
Rome. The danger of the one is only equalled by the 
danger (as shown by Archbishop Purcell) of the other. 

Of one of the proposed remedies I will here speak, 
because it has been by some advocated, and in some 
States, as California and Oregon, and perhaps others, 
has been carried into practical effect. It is the incorpo- 
ration of the bishop of any diocese as a " corporation 
sole," and in the States mentioned the title of some of 
the property of the Church is so placed. 

Objections to this, however, are many, and it has not 
found great favor. The constitution and statutes of 
some States forbid such incorporation, and it is appre- 
hended that, in many ways, it would not accomplish the 
desired end. It would lay another and heavy burden 
upon already overweighted shoulders; the responsibility 
would be too great; too much power would be centered 
in a single haud, although that power be held subordi- 
nate to the ruling and supervision of the civil courts. 
It would be contrary to the tendency and spirit of our 



30 

institutions at large. It would be contrary also to the 
spirit of the Church, for the bishop is not the Church in 
his own person — is at best but its representative head. 



IV. 

We have already seen that New York, in 1875 passed 
a general law with the intent of imposing a character of 
trust upon religious corporatigns other than for the con- 
gregations which they represented. This effort has been 
followed in other States — howmany I do not know. It 
was a step in the right direction; but a general feeling 
had been growing up in the Church before this, of the 
need of some central and permanent organization, under 
Church control, which might hold the title of property 
of the Church. 

Very likely similar corporations may have been formed, 
but the first of its kind of which I have knowledge* was 
incorporated in Wisconsin in 1848, under the title of 
" Trustees for the Management and Care of the bounds 
and Property belonging to the Protestant Episcopal 
Church in Wisconsin." 

These trustees were five in number, were elected at 
each annual council of the diocese, and were to hold 
Church property subject to the direction of the council. 
" Said trustees, hereby incorporated, shall be bound to 

*Subsequent to the writing of this I have learned that Florida 
was incorporated in 1838. See Appendix. 



31 

conform to any instructions that may be given them by 

the said convention touching the management of said 

funds and property, and the disposition of the income 

thereof." 

This act was amended in 1869 in some particulars, and 

"authorized ... to hold, etc., real or personal property 

. . . for the benefit of the Protestant Episcopal Church 

in Wisconsin, according to the usages of said Church, 

and subject to the said convention," etc. 

This action was in every way most important, and 
marked a "new departure," in that it pointed to the idea 
that the diocese, as represented by its convention, was 
the proper Church unit (an idea more familiar now than 
then), and should be the custodian of Church property, 
as such. And here I would say that Wisconsin has been 
all along a " seed place," so to speak, of new and better 
ideas in church polity and practice; has been the pioneer 
in thought and action in a development which promises 
ultimately to bring the Church out of the wilderness 
into a broader and more free and churchly plain. All 
who know her history know the source from which the 
inspiration chiefly has sprung. 

This action has been followed, in some respects imita- 
ted, in others departed from, by various dioceses. A 
short account of some of the steps taken, without regard 
to chronological order, I will give. 

In the Diocese of Long Island there has been created 
a corporatiorj known as " The Trustees of the Estate 
belonging to the Diocese of Long Island," its official 



32 

title. These trustees consist of the bishop, ex officio, and 
the members of the Standing Committe, four clergymen 
and four laymen, who are elected annually by the dioce- 
san convention. 

I have not at hand further details in regard to this 
corporation, but it already holds in trust the title of 
above twenty pieces of property for different parishes and 
missions in the diocese, some of great value.* The bishop 
permits me to quote him as saying in regard to the 
matter: " I think I may say there is a growing convic- 
tion in the diocese of the expediency of vesting title in 
the diocese, i. e. the corporation. Certainly, I favor it, 
and hope the time is near at hand when my diocese will 
be leavened with a healthy sentiment on the whole sub- 
ject. The above-named corporation has been in exist- 
ence some eight years, and is now well established in the 
confidence and good-will of the diocese." 

It will be seen that the bishop considers this corpora- 
tion as being practically the same as if the diocese were 
incorporated. I apprehend, however, a closer considera- 
tion would discover a wide divergence in idea and ulti- 
mate practical result. 

In 1863 the legislature of New York passed " An Act 
for the Incorporation of the Trustees of the Parochial 
Fund of the Protestant Episcopal Church in the Diocese 
of Western New York." It consisted of six prominent 

* The magnificent cathedral and other property given by Mrs. 
Stewart, at Garden City, will be held by this corporation. 



33 

laymen of the diocese as trustees, holding office for three 
years, and their successors elected by the convention. 
These trustees were authorized to "receive and hold, etc 
. . real and personal estate . . . devoted in part to the 
assistance and support of officiating ministers of said 
Church, . . . and in part to the purchase of glebes and 
the erection of parsonages," etc.; also, they were empow 
ered to receive and hold real and personal property for 
other purposes in connection with the Church. The 
bishop is ex officio a member of the board. 

In 1868 the diocese was divided, and by an act of the 
legislature of April 28th, that year, a similar board was 
created for the Diocese of Central New York, and an 
equal division of funds and property held in trust pro- 
vided for. These acts are very important, and those 
interested in the subject, or contemplating similar action 
would do well to give them caretul consideration. 

In June, 1875, another act was passed by the legisla- 
ture of New York, so important that I shall copy it 
almost entire. 

" Sec. 1. Any incorporated society or parish of the 
Protestant Episcopal Church in the Diocese of Central 
New York shall have power to convey or transfer all or 
any portion of the real or personal estate of such society 
or parish to the corporation known as ' Trustees of the 
Parochial Fund' in said diocese; . . . provided such con- 
veyance or transfer shall be first approved by a resolu- 
tion of the wardens and vestry of such society or parish. 



34 



duly entered in their minutes; and provided, further^ 
that any property so convej^ed or transferred shall be 
held by the said trustees of the parochial fund solely 
for the use and benefit of the society or parish making 
the conveyance or transfer, in the discretion of said 
trustees," etc. 

The object and aim of this law will be at once evident. 
In regard to the matter Bishop Huntington says: "To 
this board any parish, mission, or individual may deed, 
by the usual conveyance, any Church property, land? 
buildings or money. It is all held for the purposes of 
our Church to all time, and is lifted safely out of all local 
chances and changes, quarrels and questions. More and 
more of our new churches, and some old ones, are secured 
in this way. I favor it to the utmost extent. One of 
the advantages is that it takes away the necessity of 
organizing new parishes, and enables us to leave the con- 
gregations gathered in a more healthy, primitive, and 
manageable condition." 

Had the " Trustees of the Parochial fund" been so or- 
ganized, or could it now be so adjusted as to make the 
diocese a body corporate, very little would be left in 
Central New York to be desired in the way of legal 
arrangement. 

In New Jersey considerable difficulty nas been met 
with in regard to titles to Church property by vestries 
becoming extinct, etc.; and a few years ago a committee 
was appointed by the convention to inquire into the 



35 

matter. In consequence, a "board of trustees" has been 
incorporated in this diocese to recover and hold title to 
such property, and to hold property for missions and 
other purposes generally connected with the diocese. 
Of the special character of its organization I am not in- 
formed. 

At the Diocesan Convention of Pennsylvania, in 1879, 
a committee was appointed to inquire into the subject of 
the tenure of Church property generally, and to report 
to the next council. This council was lately held, and 
the committee made an elaborate report, reviewing the 
whole subject, and recommending the incorporation of a 
Board of Diocesan Trustees to hold such property, and 
also presented a proposed form of a charter to be, if pos- 
sible, obtained. No definite, action, however, was taken 
by the convention. The report is worthy of the consid- 
eration of all interested in the subject. 

In Central Pennsylvania a corporation has been cre- 
ated known as " The Incorporated Trustees of the Dio- 
cese of CentraljPennsylvania." Bishop Howe says, in a 
late address to the council, in regard to the matter: 

" Into the hands of this board I propose to transfer alj 
properties now held in trust by me for the benefit of any 
parish or institution of this diocese; and I earnestly 
recommend that churches, chapels, rectories, and schools 
throughout the diocese, and especially in the smaller 
places, where a succession of trustworthy men, devoted 
to the interests of the Church, cannot confidently be 



36 

expected to arise generation after generation, be con- 
veyed to these incorporated trustees. The provisions 
for the raising and expenditure of the current income, 
the election of the minister and other persons for the 
conduct of public worship, the repairs aud decorations 
of the buildings and grounds, would remain as hereto- 
fore in the control and management of the wardens and 
vestry, but they would have no power to alienate or 
encumber the real estate which has been provided for 
the permanent use of any community for religious or 
charitable purposes. And, perhaps, when it should be- 
come of common notoriety that Church property can 
not be held liable for parochial expenditure, ecclesiasti- 
cal corporations would not find speculators or tradesmen 
so ready to give them credit." The charter of this cor- 
poration, also, is valuable as a precedent of its kind. 

In the Diocese of Pittsburgh is a corporation known 
as "The Trustees for the Diocese," and its object to 
receive and hold any property for Church uses. It 
receives the title for missions and other inchoate Church 
enterprises. The trustees, except the bishop, who is ex 
officio president, are elected each year by the convention, 
and report annually. I am indebted to the bishop for 
these facts, and take the liberty of quoting him as say- 
ing: ''We avoid any 'bishop corporation-sole trust/ 
This is a very unsafe and objectionable sort of trust, east 
or west. I object to it on principle and policy." 

Ohio has a corporation composed of five laymen, 



37 

known as the " Trustees of the Diocese of Ohio." It 
was incorporated with such powers as were required to 
carry out a canon of the diocese to that end. It takes 
charge of trust-funds, lapsed parishes' estates, receives 
bequests, etc., etc. Whether the charter is of such a 
character as the name might imply, that the diocese, as 
such, is incorporated, I am not aware, but presume not- 

The Diocese of Southern Ohio, also, has a similar 
organization, incorporated, I presume, under the same 
law, but of its character I am not informed. 

I am indebted to Bishop Lay for the following from 
Maryland, which is very much to our point: 

" The legislation of Maryland has always been liberal 
toward religious bodies. Our vestries are all incorpo- 
rated by law, and have powers adequate to all needs- 
Moreover, the Convention of Maryland and the Conven- 
tion of Easton are incorporated by special acts. We 
have lately secured an amendment for the removing of 
doubtfulness, to this effect: 'Said convention may receive, 
by gift, devise, or otherwise, contributions in money, 
lands, or other property, and hold the same for burial 
grounds, Church colleges, Church or parish schools, for 
the support of missions and mission work, for building, 
adorning or repairing churches and mission chapels, and 
for any other such general or special religious or char- 
itable work or agencies within such diocese, as are now 
or may be hereafter under the jurisdiction, control or 
sanction of the said convention.' It is further provided 



38 



by diocesan canon that there shall be elected annually 
one presbyter and two laymen, who, with the bishop 
and treasurer of the diocese, shall be the ' board of man- 
agers of the trust fund of the diocese. 1 This board 
receives all such money, lands, etc., . . . and makes 
annual report to the diocese.". 

In his convention address, 1878, Bishop Lay said : 
" There are several reasons for entrusting to the conven- 
tion rather than to the vestr}", the custody and adminis- 
tration of funds intended for religious uses. Experience 
has proved that, when money is invested in the parish 
among friends and neighbors/the personal considerations 
which come in seriously interfere with a strict observance 
of the mles oi caution necessary in all business transac- 
tions. The convention, through its financial officers, 
can be impersonal in its management. Moreover, 
these officers are required to make an annual report, 
which is scrutinized by a committee. All such reports 
are spread upon the journal, and 'open to inspection, and 
are permanent of record.' 

Church property in Maryland may be held either by 
vestry, or by the convention in trust for the vestry, for 
any pious use. Whether the incorporation of a diocesan 
convention is equivalent to the incorporation of the 
diocese itself is a question for church lawyers to discuss- 
There has lately been created in the Diocese of Michi- 
gan a body corporate known as " The Church Association 
of Michigan." The corporators are the bishop and 



39 

twenty-one laymen, and the board of trustees consists of 
seven laymen, of which Gov. C. C. Trowbridge is presi- 
dent. The object is u to promote and assist the religious, 
charitable and educational interests of the Protestant 
Episcopal Church within the territorial limits of the 
Diocese ot Michigan, in co-operation with the ecclesias- 
tical authorities thereof/' etc. The association*, may hold 
land or other property in trust for the Church. This 
association has the peculiarity that it is a sort of close 
corporation; the members are elected 'by the board, and 
the board in turn by the members, as appears by By- 
law XII. Over it, in consequence, the diocese or con- 
vention has no control. It will be observed that no 
clergymen, except the bishop, has any connection with 
the association. The advantages and disadvantages of 
this plan will not here be discussed. The board has 
lately published, in a pamphlet of thirteen pages, an 
account of " Its Organization, Purposes, and By-laws." 
to which reference is made for further knowledge in 
regard to the same. 

In Western Michigan, also, there exists a " Board of 
Trustees" incorporated to hold Church property, but 
concerning it I have no particulars in hand. Bitter 
complaint, however has come from this diocese of the 
insecurity of Church property under the present system, 
and some most aggravated cases of spoliation are reported. 
The bishop has been most outspoken in regard to the 
matter, but as yet little has been done. 



40 

In 1879 a bill was introduced into the legislature of 
Illinois, but from some inadvertency failed to pass, the 
first section of which was as follows: k * Be it enacted, etc.* 
that any diocesan convention, council, synod, ... or 
any other general organization for ecclesiastical or reli- 
gious purposes, existing in any Church or religious de~ 
nomination in this State, and which, according to the 
polity, canons, customs, or usages of such Church or 
denomination is composed of or represents several par- 
ishes, congregations, or particular churches, may organ- 
ize as, or form, a corporation, with perpetual succession, 
in the manner hereinafter provided." 

The proposed act is too long to further quote, but the 
object and character of it are evident from the foregoing 
With some modifications, its passage will be sought a^ 
the next meeting of the assembly of the State. As a 
study of an effort in the right direction the proposed act 
is valuable. The object appears to be to get, a statute 
permitting the councils of the dioceses in the State to 
become bodies corporate.* 

In October, 1879, under a law recently passed in Mis- 
souri, the bishop and standing committee of the diocese 

*This proposed act is apparently a copy, in part, at least, of the 
New York statute of 1876, under which any diocese in the State 
may be incorporated. At a meeting of the First Provincial Council 
of Illinois in June, Mr. Judd, Chancellor of the Diocese of Illinois, 
proposed the following, which was adopted : 

"Resolved. By the Federate Council of the Province of Illinois, mat me 
General Assembly of the State of Illinois be and is hereby respectfully 
requested to enact into law the bill before that body at its last session, 
concarning religious corporations and the tenure of church property, or 
ome similar measure. 



41 

were incorporated under the name and title of " The 
Parochial Trust Fund of the Diocese of Missouri." The 
object of the organization is "to take title to real and 
personal property which shall from time to time be con- 
veyed . . . to it in aid of the Protestant Episcopal Church 
in the diocese, etc., to hold the same in trust, . . . etc. 
It is intended as a safe place of deposit for title to Church 
property, the beneficiary use and control to remain in 
the local congregations. The bishop declares his inten- 
sion, ordinarily, not to consecrate churches unless the 
title is vested in this organization. 

In Iowa the bishop and standing committee are also 
incorporated under the name of " The Trustees of Funds 
and Donations for the Diocese of Iowa." The general 
object and character are similar to the "Trust Fund" o* 
Missouri. The trustees "have no power to convey the 
title of any property held by them, except by permission 
of the convention of the diocese/ 1 Bishop Perry is very 
urgent that Church property be conveyed to this body, 
and refuses to consecrate any church the title to which 
is not so placed. 

In Minnesota, at the council in 1879, a committee 
was appointed to report to the next council "what canon 
and statute law are at present in force in regard to the 
tenure of Church property in this diocese, and to recom- 
mend new legislation, if any be required, in the matter. 1 ' 
Also, the committee were ''requested to report as to the 
practicability and advisability of the incorporation of 



42 



the diocese, as trustee, for the purpose of holding title 
to Church property, or any funds of the Church." 

At the council in June this committee made an able 
report, drawn up by an eminent legal gentleman of the 
diocese, reviewing the history of the State legislation in 
regard to religious corporations, advocating the forma- 
tion of a diocesan corporation, and presenting a form of 
a proposed law, similar to that proposed in Illinois, the 
passage of which, if possible, is to be obtained from the 
legislature of the State. The full report, which is very 
instructive, will be printed in the journal of the diocese 
for the current year. 

At the same council, also, a resolution was passed in- 
structing the delegation to the coming General Conven- 
tion to memorialize that body, asking that a joint com- 
mission of the two houses be appointed to enquire into 
the whole subject of Church Incorporations, and the 
methods of tenure of Church property among us, and 
to report the best methods by which the best results 
may be seemed. 

In Nebraska the "Cathedral Chapter 1 ' has been duly 
incorporated, and is the " Trustee of the Funds and 
Property of the Diocese." No special effort, however, 
has been made to induce the parishes to place the title 
of their property in this corporation, but it is thought 
that such action will sooner or later be taken by a large 
number of the parishes. The bishop now holds in trust 
the property of missions and unorganized parishes. 



43 

In Dakota the bishop, standing committee, and chan- 
cellor, are a body corporate to hold all the property of 
the diocese, purchased as well as leased. 

A letter from the Bishop of Kansas informs me that 
the need of a Diocesan Board of Trustees is keenly felt 
in that diocese, and that the initiatory steps have been 
taken towards the formation of such a board, and it is 
hoped it will be accomplished during the coming year. 

It is certain that none of our bishops have been more 
keenly alive to the necessity of laying sure foundations 
in the matter of Church property than the far-seeing 
Bishop of Colorado. In addresses and sermons he has 
called attention to the subject, and also to the necessity 
of change in organization and polity so far as our work- 
ing system is concerned. I take the liberty of quoting 
his own words as to what has been done in his jurisdic- 
tion: 

"Here I secured a general law allowing a general cor- 
poration for educational, benevolent, and missionary 
objects, under any name. Under this we have incor- 
porated the Bishop and Chapter of the Cathedral of St. 
John the Evangelist, Denver, Colorado. 

The church property that had been vested in Bishop 
Randall, and his successors in office, I have vested in 
this body. It is composed of about the same official 
persons as the Cathedral Chapter of Nebraska, only 
with larger diocesan lay representation, having in it 
only one layman from each rural deanery. Parish prop- 



u 



arty heretofore vested in parishes remains so vested, but 
there are only four or five such incorporated parishes. 
I hope to get all parishes, or nearly all, to vest in this 
body. Though it has a local name, it is of diocesan 
character. We #re working out harmoniously a very 
excellent cathedral system." 

At the Primary Convocation of New Mexico, the 
Bishop also strongly called attention to the subject, and 
Judge Prince introduced a resolution as follows, which 
was adopted : 

Resolved, That the Bishop, the members of the Standing 1 Com- 
mittee, the Chancellor, and the Treasurer be requested to organize 
themselves into a corporation under said act [quoted in preamble!, 
to be known as The Trustees of the property of the Protestant 
Episcopal Church in New Mexico, for tne purpose of taking and 
holding the property of the church in New Mexico, for the uses and 
purposes thereof, or of objects connected therewith. 

Eesolved, That we earnestly recommend that all property of the 
church in New Mexico be vested in said corporation, in order to 
secure the same in perpetuity for the purposes contemplated, or to 
prevent loss, alienation or incumbrance. 

Resolved, That we respectfully recommend to the Bishop exer- 
cising jurisdiction in New Mexico, that no church building be con- 
secrated except such as are free of incumbrance, and the titles of 
which are vested in said corporation. 

From the foregoing it will be seen that the Bishops 
in the new west are endeavoring to lay the foundations 
right. 

At the recent Council of Kentucky a committee was 
appointed "to inquire into the subject of the tenure of 
Church property, to report to the next Council a full 



45 

statement, as near as may be, of all the property and 
its tenure belonging to, or under the control of, the 
church or parishes and missions of this diocese, and to 
prepare and present a suitable plan for the creation of 
a body corporate ... to hold real and personal prop- 
erty for the Church . . . subject to the Council of the 
Diocese," &c. The committee also were instructed to 
obtain such legislation by the Legislature as may be 
necessary to carry out the plan of said proposed cor- 
poration. 

In the course of enquiries upon this subject, the 
writer has been surprised to find that in some respects 
the Southern dioceses have been in advance of those in the 
North, in the matter of diocesan incorporation. This 
in part may have come from the greater facility with 
which special charters may be obtained in the South, the 
Constitutions of most of the northern states, especially 
those in the West, forbidding special legislation to this 
end, and compelling all churches to incorporate under 
general laws. In the Northwest, consequently, we have 
great difficulty in getting proper laws for this end. 

It has already been noted that Florida was incorpor- 
ated as a diocese in 1838, ten years earlier than Wiscon- 
sin, which I had supposed the first. The whole matter, 
however, would seem, until recently, to have been in 
abeyance, but a committee was appointed in 1879 to re- 
port upon it. That report, made at the recent Council, 
is so important and interesting that I have determined 
to reprint a large part ot the same. (See Appendix.) 



46 

I have been unable to obtain from Tennesse the par- 
ticulars of the incorporation of the convention of that 
diocese, but, from reports published by the registrar, 
infer that action there was some time since taken in 
regard to giving corporate form to the diocese. In his 
report to the convention in 1878, the registrar, A. T. 
McNeai, Esq., of Bolivar,.says: " The registrar has here- 
tofore called the attention of the convention to the sub- 
ject of the tenure of Church property as a most important 
matter for their consideration, expressing the opinion 
that the vestiture of such property in the convention 
(for the use and benefit of the parishes, or such uses as 
may be designated in the conveyance) is the most secure 
and satisfactory tenure, but has hesitated in expressing 
this view until fully brought before them for consider- 
ation. 1 '' 

A committee appointed to consider the subject made a 
strong report, and, among other things said: 

■"The confusion and serious inconvenience resulting 
from other tenures have been strikingly brought to the 
attention of the undersigned during the past year. . . . 
There can be no serious objection to vesting the title to 
Church property in this convention, 1st. It is a cor- 
poration empowered by law to take and hold as trustee 
all such property. 2d. The effect of vesting titles in the 
convention would be to make the convention the holder 
of the naked legal title in trust for the use of the parti- 
cular congregation. 3d. The independence and liberty 



47 

of the congregation as to the nse of the property would 
in no wise be impaired. Its abuse alone would be re- 
strained. The separation of the legal title from the 
beneficial use would prevent the latter from alienating 
it, or encumbering it by debt, without the consent of 
the convention. 11 The committee closed their report by 
offering the following resolution: 

"Resolved, That in the opinion of this convention, the title of 
all Church property ought to be vested in this convention, in trust 
for the use of the parish, or for such other purposes as the donor 
may prescribe, and that the registrar be commended for his effort 
to accomplish this end, and that he be requested to persevere in 
his effort to persuade our parishes to cause the titles to their pro- 
perty to be vested in teu^t in this convention." 

I am indebted to N. H. R. Dawson, Esq., of Selma, 
Ala., for the following : 

" In 1864 the Legislature passed ' An act to incorpor- 
ate the Protestant Episcopal Church in the State of 
Alabama, and to enable said Church to provide for the 
orphans and widows of soldiers and other destitute per- 
sons. 1 This act provides that the Bishop cf the Diocese, 
his successors in office, be incorporated by the name of 
the Protestant Episcopal Church, in the Diocese of 
Alabama. This act vested all power in the Bishop of 
the Diocese, or if there be no bishop, in the standing 
committee. This act was amended in 1871 so as to 
provide that said corporation should report to the dio- 
cesan convention the property which may from time to 
time belong thereto, and what disposition, if any, may 



48 

have been made thereof, the said diocesan convention 
shall have, and in its discretion exercise a general super- 
vision and control in regard to property belonging to 
said corporation," &c. 

Peter P. Bailey, Esq., of Jackson, Mississippi, informs 
me that for half a century past there has been appointed 
annually by the council of that diocese, "Trustees of the 
Episcopal Fund and Church Property, 1 ' but that said 
" Trustees " have not been made an incorporated body 
until the present year. This corporation is authorized 
to hold property, real and personal, for the benefit of the 
church, to hold property in trust for parishes, and is 
subject to the control of the council of the diocese. This 
"charter" is worthy of study, and some of its features 
very valuable. 

In 1876 the Council of the Diocese of Georgia passed 
resolutions looking toward the incorporation of the 
diocese, and a committee was appointed to effect the 
same; which incorporation was accomplished the same 
year, under the name of " The Protestant Episcopal 
Church of the Diocese of Georgia," with power to sue, 
&c, . . . to be governed by the constitution, canons, &c. 
of the Church, ... to receive donations, &c, ... to 
hold property, &c, for the Church." 

A question having arisen as to the character of the 
corporation, a committee reported to the council in 1878, 
that the "legal effect of the charter was to incorporate 
all the members of the Church in Georgia with the 



49 

bishop and standing committee at their head, and not 
the bishop and standing committee alone. 1 '* 

Other dioceses as New Hampshire, Rhode Island and 
Indiana, and perhaps others, have taken similar steps, 
but of the character of the action I am not informed. 

From the foregoing reports it will be seen that a 
movement is being made " all along the line " in this 
most important matter, showing that the mind of the 
Church is seeking a remedy for the evils of the vestry 
system everywhere admitted to exist. 



V. 

The American genius thus far runs to corporations ; 
everything is done by corporation. It may be that the 
stress of necessity will yet compel us to devise some 
other way, not only in ecclesiastical, but in secular mat- 
ters, to carry on public and private enterprises. This 
favorite child of our begetting threatens to become a 
giant which may yet strangle the parents which have 
given it birth. That there is danger ahead in this re- 
gard is but too evident, and wise men are gloomily pon- 

*This is a much more important matter than appears upon first 
consideration. The bishop and standing committee are not the 
diocese, neither is the council. Objection has been raised that it is 
impossible to so incorporate a diocese. It should not seem more 
difficult than to incorporate a parish. A diocese may be made a 
"corporation aggregate, 1 ' by making all the members thereof 
me mbers of the corporation in one case as well as in the other, It 
needs only to define who the members shall be. 



50 

dering the issue. But the alternative is not yet appar- 
ent. Perhaps, and probably, it will and must come 
through through some convulsion and revolution which 
shall shake the foundations, it may be overturn themi 
and compel us to build anew.* 

But, as things are, we have the corporation, and that 
for the present, for better for worse, we must have. The 
questions for us to consider in Church matters are, What 
shall that corporation be? What body shall be given 
corporate life before the law? How shall it be done? 

Of course these questions will be answered variously, 

and from the stand-point of ecclesiastical theory to a 

chief extent. We have already seen what idea lies at 

the base oi the action for the most part thus far taken- 

It is the Puritan idea of the autonomy and independence 

of the local congregation. So universal has this been 

that, in a nominal Episcopal Church, for a hundred 

years, we have gone on incorporating an almost unmixed 

Congregationalism, and there seems to have been almost 

* Those desiring to study the subject of Church Incorporations 
will find in the American Law Register for 1873, beginning with 
the April number, an essay upon the subject by the Hon. William 
Lawrence, of Bellefontaine, Ohio, which, with the foot-notes, is a 
marvel of learning upon the subject. Both Judge Lawrence and 
Judge Fancher are Methodists, apparently, and it is evident that 
the Methodists have given this subject more attention than Church- 
men have. By direction of the Methodist discipline a clause of 
trust is inserted in all title deeds made to that body, so that the 
property cannot be alienated from its purpose. This method affords 
a certain degree of security, but has its inconveniences, as some- 
times it is desirable and necessary to secularize a piece of property 
and make some change. This method makes such change very 
difficult. 



51 

none to see the incongruity. We have fought valiantly, 
on paper, for an Episcopal polity, and, in the meantime, 
created and chartered 3,000 congregational bodies, and 
placed our whole property, and the power of "calling'' 
and virtual control of the clergy in their hands; but 
this is beyond our purpose. Those willing to pursue 
this train of thought can do so in their own way; the 
subject is not an agreeable one for us to contemplate. 

Argument will not here be made to show what is the 
Church unit, the ecclesiastical integer; but in an Epis- 
copal Church it ought to be evident. The confusion 
upon this subject is something amazing to consider; and 
yet, perhaps, in the face of the history of the past thou- 
sand and more years, it is not to be wondered at. But 
at last men (some men) are getting their heads clear 
upon it. Our American system — so for as it is a system 
— is a strange, hybrid mixture of Nationalism and Con- 
gregationalism; on the ecclesiastical side, inherited from 
the "mother" Church, the features of the "national" 
parent predominate, and upon the civil side the face and 
character are Puritanic; in fact the whole body corpo- 
rate is Puritan through and through. It is not to be 
wondered at that the general aspect is unsatisfactory. 

But it is here assumed, as it seems a Churchman 
should assume without argument, that the diocese is the 
normal Church unit; that it is the integer per se; and 
that as such it should have a body corporate before the 
law. The simple statement of this is all the argument 



52 

I purpose to make; it is all that is necessary; it argues 
itself. We have seen how in many places there u a 
looking in this direction, but few, however, seem to see 
clearly the object looked for; there is a dim feeling after 
it, and by and by, haply, it may be found. Through the 
mingled haze of Congregationalism and Nationalism and 
Papalism and Patriarchalism and Provincialism* we 
may look backward to the age of St. Cyprian, and see, 
with him, that the Diocese is the Church. 

But, of course, any movement tending to lift the 
Church out of its present anomalous condition, and to 
place it upon a more catholic and primitive basis, in- 
volves a radical change in our working organization. 
Here is the practical difficulty. Can it be done ? How 
can it be done ? 

The first necessity is to comprehend clearly what we 
want to do. We have seen somewhat of the difficulties 
in the way, but it is not believed they are insuperable. 
The first difficulty rests in a timidity that calls itself 
conservatism, that fears to suggest anything, or to en- 
tertain any new idea, lest the heavens fall. Non possu- 
mus is a most potent argument in Church councils, and 
in the mouths of multitudes besides the Pope of Rome. 

*The thoughtful reader will see in this category an epitome of 
the history of ecclesiastical polity. The unit rose from the Diocese 
to the Province, to the Patriarchate, then was usurped by Rome. 
Nationalism was a reaction from Papalism, and Congregationalism 
from Nationalism. The Province was not the normal unit, but a 
catholic and necessary aggregation of units, and has nothing in 
common with modern nationalism, with which it is sometimes 
identified. 



53 

The real difficulty lies in the readjustment of our stat- 
ute laws to meet the case. We have seen how they have 
been crystallized about the Puritanic idea. How shall, 
how can a diocese be incorporated ? 

The making of the bishop a "corporation-sole, 1 ' as we 
have seen, does not meet the requirements. The same 
objections lie in a measure against "close corporations" 
of every kind ; they are an unchurchly method in every 
aspect. Perhaps for schools and some other purposes, 
as hospitals and charitable institutions, the "close cor- 
poration 1 ' may be convenient, and may be safe, provided 
the conditions of trust are stamped strongly upon it ; 
but for the Church itself, or for holding Church prop- 
erty proper, great objections are urged against it. All 
trusts for the Church should be charged with a direct 
responsibility to the Church itself. 

Again, as to the incorporation of trustees to hold dio- 
cesan property, it will be seen that this differs widely 
from the incorporation of the diocese itself. The same 
is true of the incorporotion of the diocesan council or con. 
vention, as is done in Maryland and Tennessee, although 
it is a nearer approach. We saw in our first paper that 
the vestry of a parish, as such, are not incorporated, but 
they are trustees for the parish, which in itself is the 
body corporate. As Judge Fancher says, "The congre- 
gation, and not the trustees, are incorporated. . . . 
Whatever property is acquired is vested in the corpora- 
tion aggregate, and not in the trustees. 1 ' 



54 

Now, it is apparent that this is just what is necessary 
to be done with the diocese. We need an entire change 
of base from the congregational to the Episcopal line in 
the matter of Church property, and in a good many 
things besides. Can it be done? How can it be done? 
are questions for Church lawyers to answer. Right 
here is the point we have been aiming at all along — the 
heart and core of the whole business. The great Bishop 
of Illinois and his able counsel aimed to accomplish this 
by legal process in the civil court. In every aspect, in 
every light of the Church, they were right; they ought 
to have succeeded, but they failed, because the statute 
law, custom, usage, precedent were all against them; 
and law, custom, usage, precedent were all wrong, and 
these, of course, the courts must follow.* Our problem 

*The case of Emmanuel church, Louisville, Ky., differed rad- 
ically from that of Christ Church. Chicago. In the fonnei a clear 
condition of trust was a part of its charter. It was as follows : 

We, whose names, etc do hereby associate ourselves to- 
gether under the name, etc., . . . and by so doing do adopt the 
constitution and canons of the Protestant Episcopal Church in the 
United States of America and of the Diocese of Kentucky '." The 
decision hung chiefly upon this. In the case of Christ Church, 
Chicago, there was no such provision, and the presumption held, 
in the absence of expressed trust, that the absolute title to the 
property lay in the congregation ; the burden of proof lay with the 
Bishop. In the Louisville case the presumption was on the other 
side. These cases are typical in their way, and show the strength 
of the position I have taken. 

If no other remedy is open, it certainly is competent for parishes 
in whose charters are no trust clauses, implied or expressed, if they 
will, to reincorporate and insert such clauses of trust. This, after 
all, may furnish the clue to the outlet from our difficulty, to some 
extent. (See Appendix in regard to Florida.) 



55 



is to reverse all these, if possible make them right, to 
cause them to be adapted to the written and unwritten 
law of the Church. Can it be done? Upon the answer 
to this question may hang, humanly speaking, the des- 
tiny of the Church in our land. 

D. D. CHAPIN. 



The statute of Minnesota for the incorporation of Roman Cath- 
olic parishes contains the following "trust clause:" "Such corpor- 
ation shall at all times be subject to the general laws and discipline 
of the Roman Catholic Church, and shall receive and enjoy its 
franchises as a body-politic solely for the purposes mentioned of 
maintaining religious worship according to the doctrine, discipline 
and interest of the Roman Catholic Church, and upon the violation 
and surrender of its charter, its property, real and personal, shall 
shall vest in the Bishop of the Diocese, and his successors in trust, 
for such congregation, and for the use and purpose above men- 
tioned, and for the support cf the educational and charitable insti- 
tutions of that Church." 



APPENDIX. 

Church Incorporation in Florida — Extract from the Journal of 
the Council, 1880. 

The Committee appointed by the last Council, on the matter of 
"Incorporation of the Diocese," report, that they find already in 
existence an Act of Incorooration of the Diocese, approved Feb- 
ruary 10th, 1838. and which may be seen on page 40 of the Journal 
of the Diocese for 1838, and is among the original acts in the office 
of the Attorney General of the State as follows : 

"An Act to Incorporate the Protestant Episcopal Church in the 
Diocese of Florida." 

Section 1. Be it enacted by the Governor and Legislative 
Council of the Territory of Florida. That the Clergy and Laity of 
the several Parishes composing the Protestant Episcopal Church in 
the Diocese of Florida, be, and they are hereby declared to be a 
body corporate, by the name and style of "The Protestant Episco- 
pal Church in the Diocese of Florida, ' ' and they, and their successors, 
shall have full power to acquire and be possessed of, and hold for 
the use and benefit of the said Church, real and personal estate, and 
disuose of the same, and to receive all gifts, grants and donations 
of every description whatsoever, which may be made to the same, 
and shall have power, by their corporate name aforesaid, of sueing 
and being sued, pleading and being impleaded, and of using all 
necessary and proper steps for recovering any property whatever, 
which the said Church may hold or claim, and also the power to 
make all necessary rules and regulations for the securing as well 
the said property, as of all moneys, rents, issues, and profits grow- 
ing out of the same, or any part thereof, and shall have a corporate 
seal, which they may renew, alter and change, at pleasure. 

Sec. 2. Be it further enacted, that all Parishes of said Diocese 
which may hereafter be formed and established within the same, 



57 

shall be admitted to the benefits and privileges of said incorpora- 
tion, upon the principles prescribed, or which may nereatter be 
prescribed, by the rules of said Church, established in convention 
for the government of the Parishes composing the same, and upon 
no other principles whatsoever. 

Sec. 3. And be it further enacted, That no lands, tenements, 
hereditaments, money, or other things given at any time or at any 
place, for the use and benefit of said Church, shall be withdrawn 
from the same by any Parish, or the congregation thereof, or 
otherwise disposed of, except for the use and benefit of said Church, 
or said Parish, while the said congregation shall continue in and 
belong to the said Diocese, except by the consent of said Diocese, 
m convention assembled. 

Your Committee recommend the following amendments to this 
Act: In section 1, before the word "Clergy," insert the words, 
"Bishop and the." Section 1, after "real and personal estate.' ' 
strike out all to the words, "and to receive," and insert "and sell, 
convey or dispose of the same." In the same section, after the 
words "for the receiving," insert "disposing of or conveying." 
Section 2 amend by striking out the word "Convention" where it 
occurs, and insert instead tnereof the word "Council. ' ' Amend sec- 
tion 3 so as to read as follows: "And be it further enacted, That no 
lands, tenements, hereditaments, money or other things given to, 
or acquired at any time or at any place for the use and benefit of 
the said Church, shall be encumbered or alienated without the con- 
sent of the said Diocese, in Council assembled, or of the Bishop and 
Standing Committee of the Diocese, under direction of the Council. " 
Your Committee, therefore, offer the following resolution: 

Resolved, That a Committee be appointed to have the proposed amend- 
ments laid before the next Legislature, and also to prepare and report to 
the next Council such rules and by-laws as may be necessary to carry out 
the provisions of the Act. 

The same Committee, to whom was referred the resolutions on 
page 10— 

Resolved, That a Committee be appointed to confer with the proper 
authorities in the several Parishes of this Diocese, with the view of bring- 
ing about absolute uniformity in the Articles of Association of the Par, 
ishes ; also to examine the Articles of Association adopted by this Diocese 
in the Council of 187:3, suggesting such changes as mav appear necessary. 
This Committee shall have power to call for the Charters, Constitutions 
or Articles of Association of each of the said Parishes, as the basis of 
their work, and report in full to the next Council. 

— report as follows: 



58 

To make their work as effective as possible, the Committee com- 
municated with the authorities of every Parish in the Diocese. 
This elicited the iact that greit diversity existed. Some Parishes 
were organized under special acts of the Legislature, and others 
under the ' 'G eneral Act lor the Incorporation of Religious Societies. ' ' 
The organization of only four was found to be in conformity to the 
the Articles provided by the Diocese. In several, the basis of organi- 
zation was purely congregational and ignored fundamental princi- 
ples of Church order. Two had no formal organization, except 
admission by vote, into union with the Diocese. The very serious 
result of this singular diversity is, that from the civil, or legal stand- 
point, the Constitution and Canons of the General Convention and 
of the Diocese, are, in several Parishes, inoperative. The only 
remedy for which is, in the opinion of the Committee, the prompt 
and decided action of this Council requiring absolute and explicit 
conformity by every Parish, with the Articles provided. No diffi- 
culty exists in the way of accomplishing this, if the parochial authori- 
ties are loyal to the Church, as every Constitution, Organization 
and Association provide?, within itself, for alteration or amendment. 

For further information, see printed report, "Articles of Associ- 
ation," 1880.